Attorney's Fees on Appeal

Table of Contents

Preserving Attorney Fee Issues for
Appeal

A trial court's award of attorney fees will frequently be
entered after entry of the judgment on the merits. Where the
order on fees is entered before a notice of appeal is filed,
counsel should designate the attorney fees order along with
the judgment in the notice of appeal. Frequently, however, a
trial court will delay ruling on the attorney fees issue
until more than thirty days have elapsed from entry of
judgment. Counsel should ensure that the notice of appeal or
notice of discretionary review is filed within thirty days
from entry of the underlying judgment in order to preserve
review of that judgment, even if the attorney fee issue is
still outstanding. RAP 5.2. A pending motion for fees will
not extend the time within which a notice of appeal must be
filed. See RAP 2.4(c) and RAP 5.2(e) (listing post-trial
motions which, when timely filed, will stay requirement of
filing notice of appeal within thirty days of entry of final
judgment). But see Wlasiuk v. Whirlpool Corp., 76 Wn. App.
250, 884 P.2d 13 (1994) (notice of appeal from "amended
judgment" that included attorney fees award, brought up for
review underlying judgment on the merits, even though amended
judgment was entered more than thirty days following denial
of CR 59 motion for a new trial and more than eighty days
following entry of original judgment).

A pending motion for attorney fees poses a potential trap
for the unwary. Under the current Rules of Appellate
Procedure, an appeal from a final judgment will bring up for
review an award of attorney fees that was entered after the
notice of appeal was filed. RAP 2.4(g). This rule has been
amended effective September 1, 1998 to require counsel to
file an amended notice of appeal or an amended notice for
discretionary review in order to seek review of a trial
court's order granting or denying fees. Amended RAP 2.4(g),
effective September 1, 1998, published at 135 Wn.2d 1113
(1998). Similarly, RAP 7.2(d) has been amended to make doubly
clear the obligation to file a separate notice of appeal to
obtain review of a subsequent trial court decision on
attorney fees:

To obtain review of a trial court decision on attorney fees
and litigation expenses in the same review proceeding as
that challenging the judgment, a party must file an amended
notice of appeal or an amended notice for discretionary
review in the trial court.

RAP 7.2(d).

Thus, in order to preserve an appeal of a trial court's
order on attorney fees, counsel must file an amended notice
of appeal or notice of discretionary review in the trial
court. No new filing fee will be required if the notice
clearly states that it is quot;amendedquot; or
quot;supplemental.quot; The Court of Appeals will
administratively process the attorney fee appeal under the
same Court of Appeals cause number. If they fail to do so,
counsel may seek consolidation of the two review proceedings
in the Court of Appeals by motion before a Court of Appeals
Commissioner. RAP 3.3(b). Conversely, if the fee issues are
sufficiently complex and discrete, the Court of Appeals may
separate the cases into separate review proceedings. RAP
3.3(b).

When Reasonable Attorney Fees May Be
Claimed

In general, attorney fees are available on review on the
same grounds on which they are available in the trial court.
The general rule is that each party bears its own attorney
fees. Seattle School Dist. No. I v. State, 90 Wn.2d 476 585
P.2d 71 (1978). Reasonable attorney fees may be claimed,
however, where provided for by contract, statute, or
recognized ground in equity. Western Stud Welding, Inc. v.
Omark Indus., Inc., 43 Wn. App. 293,716 P.2d 959 (1986). See
Talmadge, The Award of Attorney Fees in Civil Litigation in
Washington, 16 GONZ. L. REV. 57 (1980). Attorney fees may
also be available as a sanction against a party pursuing a
frivolous appeal or abusing the court rules and procedures.
RAP 18.9 CR 11; Rich v. Starczewski, 29 Wn. App. 244, 628
P.2d 831, rev. denied, 96 Wn.2d 1002 (1981); Bryant v. Joseph
Tree, 119 Wn.2d 210, 829 P.2d 1099 (1992). For attorney fees
in general, including fees on appeal, P. Talmadge, supra,
Attorney Fees in Washington.

Provided by Statute or Contract

Where a statute allows for the award of attorney fees to
the prevailing party at trial it is interpreted to allow for
the award of attorney fees to the prevailing party on review
as well. See, e.g., Puget Sound Plywood, Inc. v. Master, 86
Wn.2d 135, 542 P.2d 756 (1975).

Several of the most commonly-used statutes authorizing the
award of attorney fees specifically authorize the award of
attorney fees on review. For example:

Dissolution Actions: RCW 26.09.140 provides: quot;Upon any
appeal, the, appellate court may, in its discretion, order a
party to pay for the cost to the other party of maintaining
the appeal and attorney fees in addition to statutory
costs.quot;

Decedents' Estates: RCW 11.96.140 provides: quot;Either
the superior court or the court on appeal, may, in its
discretion, order costs, including attorney fees, to be paid
by any party to the proceedings or out of the assets of the
estate, as justice may require.quot;

Small Actions for Damages: RCW 4.84.290 provides:
quot;Attorney fees as costs in damage actions of ten thousand
dollars or less-prevailing party on appeal. if the case is
appealed, the prevailing party on appeal shall be considered
the prevailing party for the purpose of applying the
provisions of RCW 4.84.250.quot;

Division III held that RCW 4.84.290 authorized the Court
of Appeals to award fees incurred in the Court of Appeals,
but not in Superior Court, in J & J Drilling Inc. v.
Miller, 78 Wn. App. 683, 691, 898 P.2d 364 (1995), review
denied, 128 Wn.2d 1011 (1996) (quot;Although J &
Drilling's request covers its appeal in Superior Court as
well, we find no specific authority of an award of those fees
by this court.quot;) Division III's reasoning seems
misguided. In J & J, the prevailing party on appeal was
the appellant, who could not have obtained an award of fees
in the Superior Court, where it had lost. Division III's
decision thus prevented the prevailing party from recouping
all its fees incurred in appeal of a District Court
judgment.

Other attorney fee statutes, while not mentioning appeals,
have been held to apply on review. For example:

A provision in a contract allowing attorney fees incurred
in an action on the contract is generally interpreted to
include those fees on appeal as well as at trial. Marine
Enters. v. Security Trading, 50 Wn. App. 768, 750 P.2d 1290,
rev. denied, 111 Wn.2d 1013 (1988); Schmitt v. Matthews, 12
Wn. App. 654, 531 P.2d 309 (1975). Since RCW 4.84.330 makes
attorney fee provisions in contracts reciprocal, the
prevailing party on appeal will be entitled to an award of
attorney fees even though the contract only provides, by its
terms, for an award to the adverse party. The statute is also
available to a defendant on a contract claim who successfully
defends by proving that there is no enforceable contract.
Herzog Aluminum Inc. v. General Am. Window Corp., 39 Wn. App.
188, 692 P.2d 867 (1984).

Recognized Ground in Equity

Several equitable grounds have been recognized for the
award of attorney fees. Where the litigant's actions create
or preserve a common fund, fees may be awarded. Grein v.
Cavano, 61 Wn.2d 498, 379 P.2d 209 (1963). Where a party's
actions have subjected another to litigation by a third
party, attorney fees may be awarded as consequential damages.
Manning v. Loidhamer, 13 Wn. App. 766, 538 P.2d 136, rev.
denied, 86 Wn.2d 1001 (1975). Where a fiduciary's breach of
duty is tantamount to constructive fraud, the injured party
may be entitled to attorney fees. Hsu Ying Li v. Tang, 87
Wn.2d 796, 557 P.2d 342 (1976).

Claims Against Insurer

The Supreme Court has fashioned a special rule allowing
for recovery of attorneys fees where an insured is required
to bring a legal action against the insurer to obtain the
fill benefit of the insurance contract. The rule has been
applied where the insured sued the insurer on a fidelity bond
and when the insured sued under a liability policy to recover
sums paid in satisfaction of claims of third parties. Estate
of Jordan v. Hartford Co., 120 Wn.2d 490, 844 P.2d 403
(1993); Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d
37, 811 P.2d 673 (1991). However, an insured who is itself in
breach of the insurance contract cannot rely on this doctrine
to claim fees. PUD No. I of Klickitat County v. International
Ins. Co., 124 Wn.2d 789, 881 P.2d 1020 (1994).

Prevailing Party

The applicable case law and statutes usually make attorney
fees available, if at all, to the quot;prevailing party.quot;
In general, the prevailing party is one against whom no
affirmative judgment is entered. Andersen v. Gold Seal
Vineyards, Inc., 81 Wn.2d 863, 505 P.2d 790 (1973). There
are, however, unusual situations in which this general rule
is difficult to apply.

A good analysis of this issue is found in Richter v.
Trimberger, 50 Wn. App. 780, 750 P.2d 1279 (1988). Richter
was to do a number of tasks for Trimberger and fish with him
in the coming season. He then was to have the option to buy
into the fishing operation or be paid $50.000. Trimberger
gave Richter a note for $50,000. Richter began the work, the
parties got into a dispute, and Richter stopped work and did
not participate in the fishing season. The parties agreed
that the work Richter had done was worth $12,000 and
Trimberger tendered a check to him for that amount. Richter
refused the check and filed suit on the $50,000 note.
Trimberger tendered $12,000 into the registry of the court
and defended the action. The court granted Richter a judgment
of $12,000, but denied his request for prejudgment interest
or attorney fees pursuant to the terms of the note. The
appellate court affirmed the trial court's determination that
Trimberger was the prevailing party and was entitled to costs
and attorney fees. Although a judgment was entered against
Trimberger and not against Richter, Richter had not achieved
anything that was not offered to him before trial.

In State v. Black, 100 Wn.2d 793, 676 P.2d 963 (1984), the
defendants prevailed in an action brought by the State under
the Consumer Protection Act. The Supreme Court expressly
stated that the defendants were prevailing parties on appeal
but then held that no attorney fees would be awarded to the
defendants because the defendants were not substantially
prevailingquot; parties under RAP 14.2 (dealing with award of
costs). The court's reasoning on this point seems flawed. The
Rules of Appellate Procedure distinguish between an award of
reasonable attorney fees and traditional costs. Different
rules apply to each. The quot;substantially prevailingquot;
test in RAP 14.2, cited by the court, applies only to costs.
It has nothing to do with an award of attorney fees. Attorney
fees are governed by RAP 18.1, and nothing in RAP 18.1
requires that a party substantially prevail before receiving
reasonable attorney fees.

It is especially important that the record includes enough
for the court to identify principles upon which the trial
court awarded attorney fees. In DeBenedictis v. Hagen, 77 Wn.
App. 284, 890 P.2d 529 (1995), the court could not tell from
the record which party had sought a trial de novo of an
arbitration award and was therefore unable to determine if
the prevailing party on appeal was entitled to its attorney
fees under MAR 7.3.

When Attorney Fees May Be Claimed as a
Sanction

RAP 18.9 provides the appellate court with broad authority
to impose attorney fees as a sanction against the pursuit of
frivolous claims and defenses or the abuse of court rules and
procedures. In addition, the sanctions of CR 11 in the trial
court are made applicable to appeals under RAP 18.7. Bryant
v. Joseph Tree, 119 Wn.2d 210, 829 P.2d 1099 (1992); Layne v.
Hyde, 54 Wn. App. 125, 773 P.2d 83 (1989).

Frivolous Appeals

RAP 18.9 has provided authority to the appellate courts to
sanction frivolous appeals since 1976. The rule was cited as
authority for imposing sanctions soon after its adoption. See
State ex rel. Moore v. Houser, 16 Wn. App. 363, 556 P.2d 556
(1976), reversed, 91 Wn.2d 269 (1978). By 1980, case law had
developed standards for evaluating whether an appeal was
frivolous. In Streater v. White, 26 Wn. App. 430, 435, 613
P.2d 187, rev. denied, 94 Wn.2d 1014 (1980), the Court of
Appeals held that a court should consider that: (1) A civil
appellant has a right to appeal under RAP 2.2; (2) all doubts
should be resolved in favor of the appellant; (3) the record
should be considered as a whole; (4) an appeal that is
affirmed simply because the arguments are rejected is not
frivolous; (5) an appeal is frivolous if there are no
debatable issues upon which reasonable minds might differ,
and it is so totally devoid of merit that there was no
possibility of reversal.

This standard was adopted by the Supreme Court and used as
the basis for awarding $2,183.90 in quot;terms and
compensatory damagesquot; in Millers Casualty Ins.. Co. v.
Briggs, 100 Wn.2d 9, 665 P.2d 887 (1983). The Supreme Court
first made an award under RAP 18.9 that was specifically
denominated as quot;attorney feesquot; in Boyles v.
Retirement Systems, 105 Wn.2d 499, 716 P.2d 869 (1986). The
court has followed that decision several times since. See,
e.g., Mahoney v. Shinpoch, 107 Wn.2d 679, 732 P.2d 510
(1987).

A pair of 1990 decisions provide further guidance on what
constitutes a frivolous appeal. In Wheeler v. East Valley
School Dist., 59 Wn. App. 326, 796 P.2d 1298 (1990), the
Court of Appeals held that the presentation of an issue of
first impression prevented the appeal from being frivolous
though it found no merit to appellant's arguments. And in
Rhinehart v. Seattle Times, 59 Wn. App. 332, 798 P.2d 1155
(1990), the court held that, where an appeal presents one
arguably meritorious issue, the appeal will not be considered
frivolous.

Similarly, the Supreme Court held that sanctions under RAP
18.9 were not appropriate where three of the plaintiffs four
claims were found to be frivolous in Biggs v. Vail, 119 Wn.2d
129, 830 P.2d 350 (1992). But see Farr v. Martin, 87 Wn. App.
177, 940 P.2d 679 (1997) (review pending) (awarding fees for
frivolous claims when other arguments had resulted in
reversal of contempt sanction).

Abuse of Court Rules and Procedures

RAP 18.9(a) allows an appellate court to impose sanctions
against a party who quot;uses these rules for the purpose of
delay or who fails to comply with these rules,quot; as well
as for frivolous appeals. The Court of Appeals has invoked
this section of the rule to impose sanctions on a party whose
appeal was not frivolous, but who had repeatedly used the
appellate rules and procedures for delay and harassment. In
Rich v. Starczewski, 29 Wn. App. 244, 628 P.2d 831, rev.
denied, 96 Wn.2d 1002 (1981), the court detailed the
seemingly endless series of motions and appeals of
interlocutory rulings filed by Starczewski. The court noted
that the appellate rules quot;are not designed to place
unjustified burdens, financial and otherwise, upon opposing
parties nor are they designed to provide recreational
activity for litigants.quot; Id. at 250. Although the court
found that one of the issues Starczewski raised on appeal was
not frivolous, it required him to pay $1,000 in compensatory
damages and $4,000 in attorney fees.

RAP 18.7 Incorporation of CR 11 Sanctions on Appeal

RAP 18.7 requires that each paper filed in appellate court
be dated and signed as required by CR 11. This provision has
been held to incorporate the remedies for violation of CR 11
into the appellate rules. Bryant v. Joseph Tree, 119 Wn.2d
210, 829 P.2d 1099 (1992); Layne v. Hyde, 54 Wn. App. 125,
773 P.2d 83, rev. denied, 113 Wn.2d 1016 (1989). This
incorporation, however, provides nothing new to the sanctions
available to an appellate court. CR 11 allows for sanctions
in three situations: (1) the assertion of a factually
frivolous claim or defense, (2) the assertion of a legally
frivolous claim or defense, and (3) the assertion of a claim
or defense for purposes of harassment or delay. As has been
noted in the analysis above, RAP 18.9 provides the appellate
court with authority to sanction the assertion of a frivolous
claim or defense and with the authority to sanction the use
of the appellate rules or procedures for harassment or
delay.

Procedure to Follow

The procedure for requesting attorney fees on appeal was
simplified greatly by the 1990 amendments to the Rules of
Appellate Procedure. RAP 18.1, which governs the claim for
attorney fees, formerly required that: (i) the request for
fees be made in the brief, (2) that an affidavit supporting
the request be filed seven days prior to oral argument, and
(3) that the request be repeated at oral argument. Fees were
frequently denied due to counsel's failure to comply with one
or more of these procedural prerequisites. RAP 18.l(c); In re
Marriage of Leland, 69 Wn. App. 57, 847 P.2d 518, review
denied, 121 Wn.2d 1033 (1993).

The amended RAP 18.1 only requires that the request for
attorney fees be made in the brief or motion on the merits
and, if the court states in its opinion that fees should be
awarded, an affidavit of fees and expenses must be filled
within 10 days after the opinion is issued. Gone, altogether,
is the requirement that fees be mentioned in oral argument.
The principal trap in the new rules is the need to file an
affidavit of financial need in cases where that is an issue
(e.g. dissolution actions) 10 days before oral argument. RAP
18.l(c); see e.g. III.B, infra.

Fees Must Be Requested in Brief or Motion on the
Merits

RAP 18.l(b) requires that any request for attorney fees be
made in the brief or in a motion on the merits if the moving
party has not yet filed a brief. The request should be in a
separate subsection of the argument section of the brief,
should explain which legal theory provides the basis for the
request, and should contain citation to authority. See Wilson
Court Limited Partnership v. Tony Maroni's, Inc., 139 Wn.2d
692, 713 n.4, 952 P.2d 590 (1998) (rejecting fees on appeal
where request made in supplemental brief, and did not include
separate section or citation to authority). The request
should be in the opening brief and not in the reply brief. In
Re Marriage of Sacco, 114 Wn.2d 1, 784 P.2d 1266 (1990). Some
statutes authorizing the award of attorney fees specifically
state that the trial court has discretion to award or refuse
to award fees on appeal. In such a case, the appellate court
will defer to the trial court's exercise of discretion in
determining if fees should be awarded on appeal. CH2M Hill,
Inc. v. Greg Bogart & Co., 47 Wn. App. 414, 735 P.2d
1330, rev. denied, 108 P.2d 1023 (1987).

Some Fee Requests Must Be Supported by An Affidavit of
Financial Need Filed Before Hearing

RAP 18.1 (c) provides: In any action where applicable law
mandates consideration of the financial resources of one or
more parties regarding an award of attorney fees and
expenses, each party must serve upon the other and file a
financial affidavit not later than 10 days prior to the time
set for oral argument; however, in a motion on the merits
pursuant to rule 18.14, each party must serve and file a
financial affidavit along with its motion or response.

This provision is new to the rules with the 1990
amendments. It was added in recognition of case law which had
developed requiring the filing of such affidavits. In Re
Marriage of Coons, 53 Wn. App. 721, 770 P.2d 653 (1989).

The requirement is understandable in light of the
statutory mandate of RCW 26.09.140 that an award of fees in a
dissolution case be based upon the need of one spouse and the
ability to pay of the other spouse. Fees awarded under RCW
26.09.140 are not based on which party prevails. The
appellate court examines the arguable merit of the issues on
appeal as well as the financial resources of the parties.
Marriage of Booth, 114 Wn.2d 772, 779, 791 P.2d 519
(1990).

If counsel has failed to comply with RAP 18.1(c), the
appellate courts may provide some leniency, as was sometimes
extended under the old rule. Donovick v. Seattle-First, 111
Wn.2d 413, 757 P.2d 1378(1988). In Donovick, counsel for the
bank failed to file counsel's affidavit seven days prior to
oral argument, but the court granted the request since
opposing counsel did not challenge the requested amount and
did not object to the request to waive strict compliance in
light of extenuating circumstances set forth in the
affidavit. Another example is Melior v. Chamberlain, 34 Wn.
App. 378, 661 P.2d 996 (1984), reversed on other grounds, 100
Wn.2d 643, 673 P.2d 610 (1983), where the Court of Appeals
allowed the award of attorney fees though no affidavit had
been filed prior to oral argument, provided that the
affidavit was filed within 15 days and $250 terms were paid.
Accord, Scully v. Employment Security, 42 Wn. App. 596, 712
P.2d 870 (1986).

The rule requires quot;each partyquot; to serve and file
an affidavit. If one of the parties files a financial
affidavit and demonstrates the need for payment of fees on
appeal and the other party does not, the court may grant fees
to the party who has complied with RAP 18.1(c), in effect
presuming that the non-complying party has sufficient funds
to pay any reasonable attorney fees. See State ex rel. Stout
v. Stout, 89 Wn. App. 118, 127, 948 P.2d 851 (1997); Marriage
of Harrington, 85 Wn. App. 613, 635, 935 P.2d 1357
(1997).

Affidavit as to the Amount of Fees is Filed After the
Decision

RAP 18.l(d) requires that the party awarded the right to
attorney fees by the decision file, within 10 days of the
decision, an affidavit detailing expenses incurred and the
services of counsel. RCP 18.l(e) allows any other party to
answer a request for fees and expenses filed pursuant to
section 18.l(d) by serving and filing answering documents
within 10 days after service of the affidavit upon the party.
If the opposing party wants the court to review the fees, it
should file an answer. Otherwise, the court has no obligation
to do anything other than approve the request. If the
requested fees are challenged, they may be justified in a
reply affidavit, to be filed within 5 days after service of
the answer. RAP 18.l(e). For a motion on the merits
proceeding under. RAP 18.14, the answer can be made any time
before oral argument

The request for attorney fees should be just for those
services rendered on appeal after entry of the judgment. In
Healer v. CBS, Inc., 39 Wn. App. 838, 696 P.2d 596, rev.
denied, 103 Wn.2d 1041, cert. denied, 474 U.S. 946 (1985),
the appellate court disallowed fees for the following
services, which the court listed in footnote 3:

In determining the amount of fees to be awarded, the
Supreme Court has indicated that there is no set formula to
be applied, but that the award must be reasonable. Allard v.
First Interstate Bank, 112 Wn.2d 145, 768 P.2d 998, opinion
amended, 773 P.2d 420 (1989). The Allard court approved the
use of several guides to assessing reasonableness of the
fees: (1) the factors listed in RPC 1.5(a); (2) any
contingent fee agreement between a party and attorney; and
(3) a determination by the court that a party should be made
whole. Where a statute provides for the award of attorney
fees on one claim, but not on other claims of the prevailing
party, the court will award fees only for the time spent
pursuing the claim for which fees may be awarded. Travis v.
Horse Breeders, 111 Wn.2d 396, 759 P.2d 418 (1988).

The Supreme Court has held that where a statute shifts a
party's attorney fees to an opponent, the time spent
establishing entitlement to the fee award and the amount of
the award is properly included in the award. Fisher
Properties v. Ardin-Mayfair, 115 Wn.2d 364, 798 P.2d 799,
motion to modify, denied, 804 P.2d 1262 (1990). The court
also held in the Fisher Properties case that generally an
attorney's time should be valued at the attorney's billing
rate used at the time the work was done, not the billing rate
used at the time of the fee application.

Time spent by nonlawyer personnel could be compensable in
a fee award. Absher Constr. Co. v. Kent School Dist., 79 Wn.
App. 841, 917 P.2d 1086 (1995). In Absher, Division I held
that nonlawyer time spent in duplicating pleadings, obtaining
docket sheets, or verifying citations and quotations was not
compensable, but that time spent in preparing briefs and
related work was.

The Absher court also engaged in a general discussion of
the factors governing an award of fees. Noting that the
burden of establishing the reasonableness of fees is on the
party seeking an award, the per curiam opinion in Absher
awarded $22,807.50 in fees on a fee request of
$36,911.54.

The court noted that quot;[a]n award of substantially less
than the amount requested should indicate at least
approximately how the court arrived at the final numbers, and
explain why discounts were applied.quot; 79 Wn. App. at 848,
citing Progressive Animal Welfare Society v. University of
Washington, 54 Wn. App. 180, 187, 773 P.2d 114 (1989). As
factors justifying a discount of the award in Absher, the
court first noted that the fee request on appeal had been
larger than the fees awarded at trial even though the only
issue was whether the trial court had erred in holding that
there was no material issue of fact on summary judgment.
quot;There may be exceptional cases where more effort is
required to defend a summary judgment than was required to
win it, but we do not view this case as within the
exceptional category. It thus does not appear reasonable to
allow a larger award on appeal for this litigation than was
reasonable below.quot; 79 Wn. App. at 848.

Division I also noted that the issues raised by the case
were institutionally of some importance to the prevailing
party and its law firm, and concluded that it was appropriate
quot;to reduce the award because some of the hours spent here
could be useful in ancillary or parallel litigation.quot; 79
Wn. App. at 848. Finally, the court opined that spending 20
hours preparing for oral argument was not reasonable. 79 Wn.
App. at 849. This latter proposition seems dubious if the
case was at all complicated, but the opinion does not reflect
the size of the record or the issues raised, except to note
that the appeal was from summary judgment.

Pursuant to RAP 18.l(f), the commissioner will make a
decision on fees. The decision will be made without oral
argument unless it is requested by the commissioner. A party
may object to the commissioner's decision by a motion to
modify, pursuant to RAP 17.7. See §16.7 of the
Washington Appellate Practice Deskbook. The clerk will
include the award of attorney fees in the mandate or in a
supplemental judgment. RAP 18.l(h).

Fees for Answering Petition For Review

RAP 18.1(j) allows for the award of attorney fees to a
party who prevailed and was awarded fees in the Court of
Appeals and successfully opposes a petition for review in the
Supreme Court. This provision was added to the rules by the
1990 amendments. A party must have both prevailed in the
Court of Appeals and received an award of fees in order to be
eligible to seek fees under this rule. It is possible for a
party to have received an award of fees in the Court of
Appeals based upon need even though the opposing party
prevailed on the appeal. In such a case, the party would not
meet the requirement of the rule that it both prevail and be
awarded fees.

The respondent must ask for fees in its answer to the
petition for review. RAP 18.1(j). If fees are awarded the
party to whom fees are awarded should then submit the same
material in support of fees as is required by RAP 18.l(d).
Answers to the request for fees or replies to answers may be
filed within the same timeliness as provided by RAP 18.l(e).
The Supreme Court Commissioner will determine the amount of
fees without oral argument, unless oral argument is requested
by the Commissioner. The Commissioner's ruling is then
subject to review as is any other ruling.

The Supreme Court will not award fees for work done in the
Court of Appeals for actions like responding to a motion to
reconsider. Fees for this work should be requested in the
Court of Appeals by way of a supplemental request.

1. Portions of this
Chapter are reprinted, with some modifications, from Chapter
26 of the Washington Appellate Practice Deskbook by
permission of the Washington State Bar Association.